European Union Law ( EU Law) - The prerequisites for state liability
Particularly, Francovich & Bonifaci (1991) were troubled by the Italian government's inability to carry out a Directive. States are required to put Directives into effect, as stated in Article 4(3) TEU and Article 288 TFEU. What the position may be in reference to subsequent violations and the degree of culpability necessary to prove liability, however, remained two unresolved problems. In Brasserie du Pêcheur SA v. Germany and Factortame III (Cases C-46 and 48/93) [1996] ECR I-1029, the ECJ discussed these concerns. The Court made it clear that state liability was a general principle, not just limited to a failure to implement Directives, and that three requirements had to be met: the rule of EU law violated had to have been intended to grant rights to individuals; the violation had to be sufficiently serious; and there had to be a direct causal relationship between the violation of the state's obligation and the harm suffered by the parties who were injured. The claimant has the onus of proving each of the three requirements. Claims involving state liability are handled before the defendant state's national court. Cases C-46 and C-48/93, Brasserie du Pêcheur v. Germany; Factortame III [1996] ECR I–1029 A French brewery named Brasserie filed a test case against the German government in the first instance, requesting compensation for losses it claimed to have experienced as a result of being unable to sell beer in Germany between 1981 and 1987. Following the ruling in Commission v. Germany (Beer Purity) (Case 178/84), the action was taken. [1987] ECR 1227, which held that the Reinheitsgebot of 1516 and more especially the 1952 Biersteuergesetz, Germany's beer purity regulation, violated Article 34 of the Treaty on European Union. The regulation stipulated, among other things, that only malted barley, hops, yeast, and water may be used to make "bottom-fermented" beers. It was said that this hindered beer trade between Germany and France, where somewhat laxer regulations were in effect. The "Anglo-Spanish" fishing fleet, which included Factortame Ltd and a number of other Spanish-owned but British-registered fishing enterprises, filed a lawsuit for damages against the UK government in the second instance. This came after the ECJ determined that the UK's Merchant Shipping Act 1988 violated the firms' directly effective rights under EU law, including their freedom of establishment under Article 49 TFEU, in Factortame II (Case C-221/89) [1991] ECR I-3905. It was claimed that the Act caused the corporations significant damages by preventing them from using their fishing rights in UK territorial seas. The three requirements for establishing state liability were established by the ECJ (set out above). Regarding requirement (1), the Court decided that both Articles 34 and 49 TFEU were meant to grant people rights. According to the Court, whereas condition (3) was solely a matter for the national courts, condition (2) was generally a matter for national courts. National regulations on recovering damages (remoteness, mitigation, etc.) would be used to determine the size of the compensation award (in the event that state guilt was proven). In order to apply the conditions (2) and, the two cases were sent
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European Union Law ( EU Law) - Additional reform ideas
Over the years, a lot of reform ideas for the preliminary judgments process have been offered. These ideas can be divided into two categories: those that aim to lessen the number of requests that reach the ECJ and those that aim to improve or streamline the European Union's judicial capacity for handling these matters. (The General Court's grant of jurisdiction, as already noted, belongs to the latter type.) Group 1 suggestions comprise: limiting the selection of national courts or tribunals that have the authority to request rulings. This could mean eliminating the ability for national courts and tribunals to obtain decisions in "first instance" (for example, magistrates' and county courts and the majority of tribunals in England). Since "first instance" courts rarely ask for references, this would presumably have little practical effect. denying "first tier" appeal courts and tribunals, like the High Court and the Employment Appeal Tribunal (EAT), the ability to request decisions. The number of requests would undoubtedly be significantly reduced as a result of this. According to statistics, the High Court and the EAT provide a significant portion of the preliminary judgements that British courts request. These organizations would be forced to interpret EU law on their own if they lost the ability to request decisions (with the risk of divergent rulings being made). tightening the Dorsch Consult (1997) criteria to exclude inquiries from organizations like "adjudicators" and "appeal boards." removing the requirement for national courts of last resort to refer cases. This has maybe already been accomplished thanks to the acte clair doctrine. Article 267 should be revised to require national judges to take the significance, difficulty, and/or novelty of the proposed judgement into account. Among the ideas in Group 2 is letting the ECJ weed out inquiries. The majority of national courts of last resort have the ability to exclude cases found to be too minor or unoriginal. There are reasons to argue that the ECJ should have the same authority. establishing regionalized tribunals with expertise in EU law, under the supervision of a new "European High Court of Justice" that would replace the ECJ. In the United States, federal courts are organized similarly, with the Supreme Court in Washington, DC, at the top, presiding over the rulings of the different federal "circuit" courts, which in turn supervise the federal courts in the states that make up each "circuit." The academics Jacque and Weiler were the ones who first put forward the latter recommendation: The [ECJ] will continue to be at the top of the system; it may be renamed the European High Court of Justice. We suggest setting up four new Community Regional Courts with the authority to accept preliminary references from national courts in each region and issue preliminary judgements in those cases. A party to the proceedings, as well as the Commission, Council, Parliament, or Member States as interveners, may appeal to the European High Court of Justice when the Regional Court issues its decision or preliminary ruling. On the Road to European Union: A New Judicial Architecture, J. P. Jacque and J. Weiler (1990), 27 CMLR 185 A distinct interpretation of decentralization was put out by the academics Richard Drabble, Justine Thornton, and Veerle Heyvaert. They assert the following, extrapolating from the General Court's 1989 and the Civil Service Tribunal's 2005 foundings: By creating specialized organizations for issues that are normally thought to require a high level of technical specialization and expertise to address, such as trademarks and competition disputes, it would be able to broaden the spectrum even more. Environmental decision-making may fall under the category of a field that requires a specialized court. In order to account for the ongoing increase in procedures filed over time, the creation of additional EU courts or tribunals could at least minimize delays from getting any worse. "With Reference to the Environment: The Preliminary Reference Procedure, Environmental Decisions, and the Domestic Judiciary" by V Heyvaert, J Thornton, and R Drabble (2014) 130 LQR 413 All of these ideas would lighten the ECJ's load and shorten the waiting period, but at what cost? Restricting the authority of national courts to request rulings will undoubtedly result in more appeals in the national courts as disgruntled litigants attempt to bring a case before a national court that has retained the ability to do so. The "cooperation" between the ECJ and the courts and tribunals of the Member States could be jeopardized by filtering. The development of EU legal principles may be hampered, as this could discourage national courts from seeking rulings in situations where they would otherwise do so, potentially resulting in inconsistent interpretations among Member States (important doctrines like direct effect, indirect effect, state liability, and fundamental rights were all developed during preliminary ruling cases). Regionalization jeopardizes consistency, and opening numerous new courts will be expensive in terms of infrastructure, personnel, communications, and IT. There can also be disputes over where any future regional courts should be located. European Union Law ( EU Law) - The Urgent Preliminary Procedure
Preliminary ruling in an emergency A new urgent preliminary rulings method was adopted in March 2008 and is only to be used in rare circumstances. The following is how the Court of Justice outlined the rationale for the new procedure: This process is effective as of 1st March 2008 and should allow the Court to deal with the most delicate issues pertaining to the areas of freedom, security, and justice much more quickly, such as those that may arise, for instance, in specific circumstances where a person is deprived of his liberty and the answer to the question raised is essential to determining the person's legal situation; or in proceedings concerning p By limiting the number of parties eligible to submit written observations, referring all cases involving the areas of freedom, security, and justice to a special chamber of five judges who will decide whether to apply the new procedure and, if they do, will issue their decision shortly thereafter, and using only electronic communication, the new procedure reduces waiting times. In Rinau (case C-195/08 PPU) [2008] ECR I-5271; [2009] 2 WLR 972, the new process was first applied. The Supreme Court of Lithuania requested a preliminary judgement in a custody dispute on April 30, 2008. She shared a home with her mother in Lithuania after her parents had divorced, but her father, who lived in Germany, was suing for custody. The ECJ used the new process, and on July 11—just over 10 weeks later—the decision was made. The Court stated that the need to safeguard Luisa from harm, prevent jeopardizing her connection with her father, and create a "fair balance" between Luisa's interests and those of her parents justified the haste. Santesteban Goicoechea (case C-296/08 PPU) [2008] ECR I-6307) saw an even quicker resolution. A preliminary decision was sought in this case by the Court of Appeal in Montpellier, France, regarding the potential extradition of a Spanish national from France to Spain to answer to criminal allegations. Less than six weeks after the ruling was requested on July 3rd, 2008, the ECJ issued its decision on August 12th. In this case, the haste was appropriate because the subject was being kept in custody in France after serving a prison sentence there and pending his potential extradition to Spain. Although the new process has received positive academic reviews, Koutrakos ('Speeding up the Preliminary Reference Procedure: Fast but not Too Fast' (2008) 33 EL Rev 617) has noted that "there is a balance which must be struck" between delivering judgments as quickly as possible (on the one hand) and giving the ECJ's judges enough time "to reflect on the questions put to them, assess the arguments... and consider the wider ramifications of their conclusio (on the other). According to him, giving a verdict takes time, which is not a "luxury" but rather "an essential prerequisite for the competent administration of justice." |
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